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United States v. Alamo

United States District Court, E.D. Pennsylvania

July 11, 2018

ALEXANDER ALAMO, a/k/a "FLEX" Defendant.


          C. DARNELL JONES, II J.

         I. Introduction

         This matter is before the court on two pro se motions filed by Petitioner Alexander Alamo: (1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; and, (2) Motion Pursuant to Rule 15(c) of the Fedral [sic] Rules of Civil Procedure for Permission to Amend Petition to Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. 2255. (ECF Nos. 77, 82.) For the reasons set forth below, Petitioner's Motion to Amend shall be granted and his Amended Motion to Vacate, Set Aside, or Correct a Sentence shall be denied without a hearing. Further, no Certificate of Appealability shall issue.

         II. Background

         A. Procedural History

         On December 9, 2003, Petitioner was named in a thirteen-count indictment related to his sale of crack cocaine to an undercover police officer over a three-month period in Reading, Pennsylvania. Following a jury trial before the late Honorable James Knoll Gardner, Petitioner was convicted of eight of the thirteen counts: one count of Conspiracy to Distribute Cocaine Base ("Crack"), in violation of 21 U.S.C. § 846 (Count One); two counts of Distribution and Aiding and Abetting the Distribution of Cocaine Base ("Crack"), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c), and 18 U.S.C. § 2 (Counts Two and Six); two counts of Distribution and Aiding And Abetting the Distribution of Cocaine Base ("Crack") Within 1000 Feet of a School, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2 (Counts Three and Seven); one count of Possession With Intent To Distribute In Excess of 50 Grams of Cocaine Base ("Crack"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count Ten); one count of Possession With Intent To Distribute In Excess of 50 Grams of Cocaine Base ("Crack") Within 1000 Feet of a School, in violation of 21 U.S.C. § 860(a) (Count Eleven); and, one count of Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (Count Thirteen). Petitioner was acquitted of the remaining five counts.[1]

         On August 23, 2004, Petitioner was sentenced to a term of 276 months imprisonment, followed by ten years of supervised release. A fine of $1, 000, as well as a special assessment of $500 were also imposed. Petitioner filed a timely Notice of Appeal challenging the sufficiency of the evidence regarding his convictions on several counts. On December 20, 2005 the United States Court of Appeals for the Third Circuit affirmed Petitioner's conviction.[2] However, the Third Circuit vacated Petitioner's sentence and remanded for resentencing in accordance with the United States Supreme Court's newly-issued decision in United States v. Booker, 543 U.S. 220 (2005).

         Following the Third Circuit's decision, Petitioner sought review from the United States Supreme Court, which denied certiorari on April 17, 2006. Alamo v. United States, 547 U.S. 1084 (2006). On August 3, 2006, consistent with the Third Circuit's Opinion, Judge Gardner held a resentencing hearing, after which he again sentenced Petitioner to 276 months imprisonment, ten years of supervised release, and imposed a fine of $1, 000 together with a special assessment of $500.

         On August 4, 2006 Petitioner filed a Notice of Appeal from his August 3, 2006 resentence. Petitioner's appointed counsel, James M. Polyak, Esquire, filed a Motion to Withdraw as Counsel and submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Upon review, the Third Circuit concluded there were no non-frivolous issues for appeal. United States v. Alamo, 289 Fed.Appx. 562, 563 (3d Cir. 2008). However, because Kimbrough v. United States, 552 U.S. 85 (2007) was decided after counsel filed his Anders brief, the Third Circuit denied counsel's motion and dismissed the appeal without prejudice to Petitioner's right to file a motion pursuant to 18 U.S.C. 3582(c)(2). Id.

         On December 22, 2008, the court was advised that Petitioner had made an unopposed request for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) based upon amendments to the United States Sentencing Guidelines in 2007 that lowered his applicable Guidelines range. The court was further advised that the parties had agreed to a proposed revised sentence of 225 months imprisonment. On December 29, 2008, Judge Gardner granted Petitioner's request pursuant to Section 3582(c)(2) and imposed a reduced sentence of 225 months imprisonment. Petitioner did not file a direct appeal. On December 8, 2011, the court was advised that Petitioner was eligible for a further reduction of sentence pursuant to Section 3582(c)(2) based upon additional amendments to the Sentencing Guidelines in 2011 that lowered his applicable Guidelines range. The parties agreed to a reduced sentence of 145 months imprisonment. Judge Gardner granted the request on December 8, 2011 and imposed a further reduced sentence of 145 months imprisonment. The within matter followed.[3]

         B. Factual History

         Petitioner's convictions arose from his sale of crack cocaine to undercover Police Officer Jacqueline Flanagan of the Reading Police Department in Reading, Pennsylvania. On January 9, March 21, and April 7, 2003, Officer Flanagan purchased crack cocaine with pre-recorded money from an individual who identified himself as "Flex."[4] On March 26, 2003, Officer Flanagan also purchased crack cocaine from "Flex" in exchange for an air conditioner in its original box.[5] On all four dates, police officers conducted surveillance, took photographs, and observed the suspect identified as "Flex" during and after the transactions.[6] During the March 26, 2003 transaction, police observed the suspect arrive in a vehicle driven and owned by Myra Ruiz.[7] After the sale, police followed Ms. Ruiz's car to an apartment on Buttonwood Street in Reading, where they observed the suspect carry the air conditioner into the apartment.[8]

         Before the March 21, 2003 transaction, Officer Flanagan was asked to identify the person from whom she purchased crack cocaine.[9] Reading Police Investigator Pasquale Leporace received information from a Pennsylvania State Police trooper that the individual named "Flex" was Joel Rivera.[10] Investigator Leporace compared a photograph of Mr. Rivera and the photographs taken of "Flex," and determined that they looked similar.[11] Reading Police Investigator Michael Gombar showed the photograph of Mr. Rivera to Officer Flanagan, and she positively identified him as the person from whom she purchased the crack cocaine.[12]

         Following the fourth purchase, Investigator Gombar obtained a search warrant from Reading Magisterial District Judge Wally Scott in Magisterial District 23-1-03.[13] The search warrant authorized searches of the Buttonwood Street apartment, Joel Rivera, and Myra Ruiz. In addition, Investigator Gombar obtained an arrest warrant for Mr. Rivera from Magisterial District Judge Scott.[14]

         On April 9, 2003, the warrants were executed by police. They found Ms. Ruiz and the individual they believed to be Mr. Rivera inside the apartment.[15] Before conducting the search, the suspect explained that his name was Alexander Alamo, and not Joel Rivera.[16] As such, Investigator Gombar called Officer Flanagan to the apartment before proceeding with the search.[17] Officer Flanagan positively identified Petitioner Alexander Alamo as the person from whom she purchased crack cocaine on all four occasions.[18] Accordingly, the police proceeded to search the apartment. The search disclosed, among other things, the air conditioner used in exchange for crack cocaine during the March 26, 2003 transaction, as well as several firearms and crack cocaine.[19] Petitioner and Ms. Ruiz were arrested. Investigator Gombar subsequently withdrew the arrest warrant naming Joel Rivera.[20]

         On April 9, 2003, Investigator Gombar executed a criminal complaint and affidavit before Magisterial District Judge Scott, who also conducted Petitioner's arraignment.[21] At trial, the government called several witnesses to establish that Officer Flanagan had purchased crack cocaine from Petitioner.[22] Reading Police Investigators Edwin Santiago and Pasquale Leporace, who conducted surveillance, identified Petitioner as the person with whom Officer Flanagan conducted at least two of the drug transactions.[23] Officer Flanagan and Investigator Leporace testified that the photograph of Joel Rivera resembled Defendant Alamo.[24]Additionally, the government presented Petitioner's girlfriend at the time of the crimes--Myra Ruiz-as a witness at trial. Ms. Ruiz testified regarding Petitioner's practices of cooking and selling crack cocaine.[25] She also identified the car she drove to the March 26, 2003 crack cocaine sale to Officer Flanagan, and testified that she was present when Petitioner transferred the air conditioner from Officer Flanagan's car, to Myra Ruiz's vehicle.[26] Ms. Ruiz further explained that some of Petitioner's customers referred to him as "Flex".[27] She denied ever knowing, or being in a relationship with, Joel Rivera.[28]

         III. Standard of Review

         Section 2255 of Title 28 of the United States Code provides federal prisoners with a vehicle for challenging an unlawfully imposed sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C.§ 2255(a).

         A motion to vacate sentence under Section 2255 "is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). A petitioner may prevail on a Section 2255 habeas claim only by demonstrating that an error of law was constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or an "omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).

         IV. Discussion

         Petitioner concedes that none of the five claims he raises in his Petition, nor the sixth claim he seeks to add via amendment, have been raised on direct appeal. It is well established that a Petition brought pursuant to Section 2255 cannot be used as a substitute for direct appeal. United States v. Smith, 235 F.Supp.2d 418, 426 (E.D. Pa. 2002). In general, failure to raise an issue on direct appeal constitutes waiver, and the procedural default prevents the claim from being raised in a Section 2255 motion unless the petitioner can show both cause for the failure to raise the issue and actual prejudice, or the petitioner can show actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998).

         "'Cause' must be objective - something external to the petitioner, something that cannot be fairly attributed to him." Smith, 235 F.Supp.2d at 426 (citing Coleman v. Thompson, 501 U.S. 722, 751 (1991) and Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show prejudice, a petitioner must establish that the alleged error "worked to his actual and substantial disadvantage," and that it infected the proceedings with "error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

         However, the United States Supreme Court has held that the procedural default rule does not apply to ineffectiveness claims brought pursuant to Section 2255, but instead "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the [Defendant] could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Davies, 394 F.3d 182, 188 n.5 (3d Cir. 2005). Accordingly, although Petitioner raises his ineffective assistance of counsel claims for the first time in his Petition, this Court shall address same below.

         A. Ineffective Assistance of Counsel

         As a preliminary matter, Petitioner's Motion to Amend his Petition to add an ineffective assistance of counsel claim based upon counsel's alleged failure to challenge Officer Flanagan's out-of-court identification of Petitioner, shall be granted. As the government concedes, this claim properly relates back to Petitioner's timely Habeas Petition for purposes of the statute of limitations, because it "arose out of the conduct, transaction, or occurrence set the original pleading." Fed.R.Civ.P. 15(c); see also Mayle v. Felix, 545 U.S. 644, 662-664 (2005) ("So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.").

         Petitioner's claim of ineffective assistance of counsel, as well as all five claims presented in his petition, each center on his primary allegation that an individual named Joel Rivera-not Petitioner- -was the actual suspect involved in the crimes with which Petitioner has been convicted. Therefore, relation back under Rule 15(c) is appropriate because "the original and amended petitions state claims that are tied to a common core of operative facts." Mayle, 545 U.S. at 664; see also Hodge v United States, 554 F.3d 372, 378 (3d Cir. 2009) ("[N]ew claims can relate back if they arise from the same conduct, transaction, or occurrence described in a timely filed 2255 motion.").

         Petitioner alleges four separate claims of ineffective assistance of counsel (three in his Habeas Petition and one in his Motion to Amend). Specifically, Petitioner contends counsel was ineffective by failing to: (1) challenge and seek to exclude Officer Flanagan's impermissibly suggestive out-of-court identification and her tainted in-court identification; (2) challenge by pre-trial motion, or on direct appeal, the false statements in the search and arrest warrants and affidavits; (3) object to, or raise on direct appeal, fraud on the court by Officer Flanagan; and (4) object to, or raise on direct appeal, prosecutorial misconduct for knowingly using false police reports and in eliciting false testimony.

         A claim of ineffective assistance of counsel requires a showing of two elements: (1) counsel's performance must have been deficient to the extent that errors by counsel were so serious, that he was not functioning as "the counsel" guaranteed by the Sixth Amendment; and, (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deficiency in counsel's performance, a convicted defendant must demonstrate that the representation fell below an "objective standard of reasonableness" based on the particular facts of the case and viewed at the time of counsel's conduct. Strickland, 466 U.S. at 688, ; see also Senk v. Zimmerman, 886 F.2d 611, 615 (3d Cir. 1989) ("[W]e will not often decide that attorneys have acted unreasonably under prevailing professional standards when they do not make an objection which could not be sustained on the basis of the existing law, as there is no general duty on the part of defense counsel to anticipate changes in the law.") (citations omitted). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotations omitted).

         To establish the second Strickland prong, "Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Counsel's errors must have been so serious that they deprived the defendant of a "fair trial" with a "reliable" result. Strickland, 466 U.S. at 687.

         1. Officer Flanagan's Out-of-Court and In-CourtIdentifica ...

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